So the last time we talked about Texas's insanely unconstitutional social media bounty law in May, the 5th Circuit was about to let the law take effect on June 1 pending its ruling, when it was blocked by SCOTUS on May 31 because it was bonkers as hell.
Tonight, the 5th Circuit handed down its full decision on the law and of course the conservatives crapped out one of the most insane decisions in modern jurisprudence.
The 5th Circuit Court of Appeals on Friday upheld a controversial Texas social media law that bars companies from removing posts based on a person’s political ideology, overturning a lower court’s decision to block the law and likely setting up a Supreme Court showdown over the future of online speech.
The ruling could have wide-ranging effects on the future of tech regulation, giving fresh ammunition to conservative politicians who have alleged that major tech companies are silencing their political speech.
But the decision diverges from precedent and recent rulings from the 11th Circuit Court of Appeal and lower courts, and tech industry groups are likely they would appeal.
Friday’s opinion was written by Judge Andrew Stephen Oldham, who was nominated to the 5th Circuit by former president Trump. He was joined by Judge Edith Jones, a Reagan appointee. Judge Leslie H. Southwick, a George W. Bush appointee, concurred in part and dissented in part.
In the opinion, Oldham wrote that while the First Amendment guarantees every person’s right to free speech, it doesn’t guarantee corporations the right to “muzzle speech.” The Texas law, he wrote, “does not chill speech; if anything, it chills censorship.”
The ruling criticized the tech industry’s arguments against the law, saying that under the companies’ logic, "email providers, mobile phone companies, and banks could cancel the accounts of anyone who sends an email, makes a phone call, or spends money in support of a disfavored political party, candidate, or business.”
An appeal of the decision could force the Supreme Court, where conservatives have a majority, to weigh in on internet regulation, which has become an increasingly politicized issue since the 2016 election. Democrats have called for new limits on the companies that would block the proliferation of harmful content and misinformation on the platforms, while conservatives have argued that the companies have gone too far in policing their sites, especially after the companies’ 2021 decision to ban Trump following the Jan. 6 attacks on the Capitol.
In an analysis shared with The Washington Post in July, the industry group Computer & Communications Industry Association, one of the groups that challenged the Texas law, identified more than 100 bills in state legislatures aimed at regulating social media content moderation policies. Many state legislatures have adjourned for the year, so tech lobbyists are bracing for more activity in 2023.
Earlier this week, California Gov. Gavin Newsom (D) signed a bill into law that forces large social networks to make public their policies for how posts are treated, responding to criticism that posts glorifying violence and hatred are being amplified by the platforms.
“If the Supreme Court doesn’t weigh in, it’s going to be increasingly difficult to operate a nationwide social media company because it could be navigating state rules that differ or even conflict,” said Jeff Kosseff, a cybersecurity law professor at the United States Naval Academy.
Earlier this year, the Supreme Court stopped the Texas law from taking effect in a 5-4 decision, responding to an emergency request from tech industry trade groups. However, the judges did not explain the reasoning for their decision, which is common in such requests.
In their ruling, the 5th Circuit judges agreed with Texas that social media companies are “common carriers,” like phone companies, that are subject to government regulations because they provide essential services. Conservatives have long made this argument, which has resonated with at least one Supreme Court justice, Clarence Thomas, who has written that there are parallels between social media companies and phone companies.
Tech industry groups and legal experts warned that the 5th Circuit’s decision runs counter to First Amendment precedent and warned that it could result in harmful posts staying on social networks.
“Little could be more Orwellian than the government purporting to protect speech by dictating what businesses must say,” said Matt Schruers, president of the Computer & Communications Industry Association. “The Texas law compels private enterprises to distribute dangerous content ranging from foreign propaganda to terrorist incitement, and places Americans at risk.”
Understand that right now, under this law, any Texan who has had a post on any major social media account removed can sue that platform for $10,000 per post taken down. It would be the end of social media as we know it, reducing platforms to spouting unlimited vile harassment and freely without consequence, making social media platforms into common carriers and subject to regulation by the FCC.
The Roberts Court would have to step in, and given a broad enough ruling affirming the law from SCOTUS, it would shut down Facebook, Twitter, Instagram, TikTok, WhatsApp, all of it.
Of course, since the Texas law would only affect the largest social media platforms, those specifically over 50 million users, smaller ones like, say, Gab, Parler, and Truth Social would be the only game in town, and I'm betting Truth Social would love nothing more than to limit their users accounts to 49,999,999 and sell those accounts to corporations, news outlets, and celebrities for a pretty penny.
Twitter, Facebook, and Instagram, probably TikTok too, would be done for. There's no way these companies could stay in business without ridding themselves of tens of millions of users *and* having to adopt a pay-to-play model to limit users to an unregulated cesspool of racist vomit. At the very least, a publicly traded company suddenly forced to shed tens of millions of users would die screaming in the stock market.
Which is the point.